SCREENING OR DETERMINING WHEN AN ENVIRONMENTAL IMPACT ASSESSMENT (EIA)
The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. secs.
4321-4370c, requires preparation of an Environmental Impact Statement
for (i) any major federal action that (ii) significantly affects the
quality of the human environment. 42 U.S.C. sec. 4334(2)(C). Only public
federal actions trigger the EIS requirements, but because such public
actions include any federal financing, assistance or approval of a
project, many "private" projects are covered by NEPA. Major Federal
actions also include the adoption of most official policies, formal
plans, or programs, as well as the approval of specific projects. 40
C.F.R. sec. 1508.18.
Each federal agency excludes some projects from the EIA process when
experience has shown that a certain category of actions do not
significantly affect the environment. For all other proposed actions the
lead agency prepares a preliminary environmental assessment (EA), which
must provide sufficient evidence and analysis to determine whether an
EIS is required. 40 C.F.R. sec. 1501.4(b), (c) and 40 C.F.R. sec.
1508.9(a)(1). The EIS should contain a brief discussion of the need for
the proposed action, alternatives, and impacts. 40 C.F.R. sec.
1508.9(b). If the agency finds the action will not significantly affect
the quality of the human environment, it prepares a finding of no
significant impact (FONSI). 40 C.F.R. sec. 1501.4(e). Otherwise the
agency begins preparing the EIS. 40 C.F.R. sec. 1501.4(d).
DETERMINING THE SCOPE OF THE EIA PROCESS
The lead agency with jurisdiction over the project determines the scope
of the EIS. 40 C.F.R. sec. 1501.7(a)(2). "Scope" is defined as the range
of actions, alternatives, and impacts to be considered in an
environmental impact statement. 40 C.F.R. sec. 1508.25. In addition,
during the scoping phase the lead agency will eliminate insignificant
issues or issues covered by prior environmental reviews, allocate
assignments among agencies, identify timing issues, and decide whether
to set page or time limits. 40 C.F.R sec. 1501.7(a) and (b).
The agency must consider three types of actions: connected actions,
cumulative actions, and similar actions. Connected actions are those
where: (1) one action automatically triggers another action, (2) an
action cannot proceed unless other actions are taken previously or
simultaneously, or (3) the actions are interdependent parts of a larger
action and depend on the larger action for their justification.
Cumulative actions are actions, which, when viewed with other proposed
actions, have cumulatively significant impacts. Similar actions are
actions that when viewed with other reasonably foreseeable or proposed
agency actions, have similarities that provide a basis for evaluating
their environmental consequences together, such as common timing or
Three types of alternatives must also be considered in the scoping
phase: the proposed action, other reasonable alternatives, and the "no
Three types of impacts should be considered for each alternative:
direct, indirect, and cumulative impacts. Direct impacts are caused by
the action and occur at the same time and place. 40 C.F.R. sec.
1508.8(a). Indirect impacts are caused by the action but are removed in
time or distance. 40 C.F.R. sec. 1508.8(b). Cumulative impacts are
defined as impacts that result from the incremental impact of the action
when added to other past, present, and reasonably foreseeable future
actions. 40 C.F.R. sec. 1508.7.
CONTENTS OF THE EIA DOCUMENT
NEPA requires that the EIS include information on: (1) the environmental
impact of the proposed project; (2) any adverse environmental effects
which cannot be avoided should the proposal be implemented; (3) the
relationship between local short-term uses of the environment and the
maintenance and enhancement of long-term productivity; and (4) any
irreversible and irretrievable commitment of resources necessary for
implementing the proposed action. 42 U.S.C. sec. 4332(C). The EIS must
also describe alternative to the proposed project and possible measures
for mitigating the environmental harms. See also 40 C.F.R. sec. 1502.16.
NEPA requires that every EIS include a detailed statement on
alternatives to the proposed action. 42 U.S.C. sec. 4332(2)(C)(iii). For
each alternative, the agency must describe the direct, indirect and
cumulative impacts. 40 C.F.R. sec. 1508.25(c). The EIS should present
the environmental impacts of the proposal and the alternatives in
comparative form, providing clearly defined options from which to
choose. The agency must evaluate all reasonable alternatives, including
the alternative of no action, and identify the preferred alternative. 40
C.F.R. sec. 1502.14.
The EIS must also identity appropriate mitigation measures. 40 C.F.R.
sec. 1502.14(f). The agency is not required to adopt mitigation
measures, but it must explain why any potential mitigation was not
adopted. 40 C.F.R. sec. 1505.2(c). The lead agency must ensure the
implementation of any mitigation measures upon which the final decision
was conditioned. 40 C.F.R. sec. 1505.3.
DECISIONMAKING AND POST-DECISION MONITORING
NEPA regulations provide that "[a]gencies shall integrate the NEPA
process with other planning at the earliest possible time, to insure
that planning and decisions reflect environmental values, to avoid
delays later in the process, and to head off potential conflicts." 40
C.F.R. sec. 1501.2. The regulations also state that the EIS must be
prepared early enough to contribute to the decision making process and
that the EIS may not be used to rationalize or justify decisions already
made. 40 C.F.R. sec. 1502.5.
After the EIS has been completed, NEPA requires that agencies with
related jurisdiction or special expertise be allowed to comment on
issues in the EIS within their areas of competence. 40 C.F.R. sec.
1503.2. EPA reviews all EISs. 40 C.F.R. sec. 1504.1(b). The lead agency
must respond to all comments including comments from the public, by: (1)
modifying alternatives including the proposed action; (2) developing and
evaluating new alternatives; (3) supplementing, improving, or modifying
its analysis; (4) making factual corrections; and/or (5) explaining why
the comments do not warrant further response. 40 C.F.R. sec. 1503.4(a).
If a federal agency, after attempting to resolve its concerns about the
EIS with the lead agency, remains convinced that an aspect of the EIS is
"unsatisfactory from the standpoint of public health or welfare or
environmental quality" the agency should refer the matter to the Council
on Environmental Quality (CEQ). 40 C.F.R. sec. 1504.1. The CEQ may
mediate between the lead and referring agencies and/or submit its own
recommendations to the President for action. 40 C.F.R. sec. 1504.3.
Record of Decision.
After the period for public comment and referral of any disagreements
to the CEQ has expired, the agency that prepared the EIS decides whether
to proceed with the action. 40 C.F.R. sec. 1506.10. A record of decision
(ROD) must be prepared and made public at the time of the decision. No
decision on the proposed action may be taken until 30 days after public
notification that the EIS has been completed. 40 C.F.R. sec.
1506.10(b)(2). The ROD must state the basis for the agency's decision,
identify all alternatives that were considered, specify the
environmentally preferable alternative, and explain any requirements for
avoiding or mitigating environmental harm. The agency is not required to
select the environmentally preferable alternative, but it must explain
its reasons for selecting a less environmentally protective alternative.
40 C.F.R. sec. 1505.2.
While NEPA generally does not require post-decision monitoring, it does
require a "monitoring and enforcement program" for any required
mitigation. 40 C.F.R. sec. 1505.2(c). Mitigation measures included in
the ROD must be implemented by the project proponent. Agencies must make
the results of relevant mitigation monitoring available to the public.
40 C.F.R. sec. 1505.3.
fromSummary of Enviromental Law in the United States - CEC
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